https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2258

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA CIVIL APPEAL NO. E217 OF 2024 WINGUARDS SERVICES LIMITED ............................. APPELLANT VERSUS JAMES OMBUNGA NYAATA ..................................... RESPONDENT ***(Being an Appeal from the Judgment of Hon. M. L. Nabibya (SPM) delivered on 19th September 2024 in the Chief Magistrate's Court at Mombasa, Employment and Labour Relations, Cause No. E557 of 2022)*** **JUDGMENT** **A. INTRODUCTION** 1. This is an appeal from the Judgment of the Chief Magistrate's Court at Mombasa (Hon. M. L. Nabibya, SPM) delivered on 19th September 2024 in Mombasa CMELRC No. E557 of 2022, James Ombunga Nyaata v Winguards Services Limited, in which the trial court found that the Respondent's employment had been unfairly terminated by the Appellant and entered judgment in the Respondent's favour in the sum of Kshs. 271,419.90, together with costs and interest. 2. Being aggrieved by the whole of that Judgment, the Appellant filed a Memorandum of Appeal dated 11th October 2024, and thereafter filed its Record of Appeal and Written Submissions dated 29th October 2025. The Respondent opposed the appeal and filed Written Submissions dated 10th December 2025 through the firm of Otieno Asewe & Co. Advocates, urging the Court to dismiss the appeal in its entirety. **B. BACKGROUND AND THE CASE BEFORE THE TRIAL COURT** 3. The Respondent's case, as pleaded and testified to before the trial court, was that he was employed by the Appellant as a day security guard on 1st December 2018 at a monthly salary which, by the time of separation, stood at Kshs. 13,500/= consolidated gross (pleaded in part as Kshs. 12,680/= net of the statutory minimum comparator). He was deployed to provide security services at the Kenya Revenue Authority (KRA) Customs premises. He testified that on reporting for duty at the end of October 2021, he found that another security guard from a different company had taken over his station. Upon calling the Appellant's branch manager, he was instructed to return his uniform, which he did, and was told to await further instructions and a recall to work. No recall ever came, and no letter of termination, notice, or reasons for separation were ever furnished to him. His last working day was 31st October 2021. 4. The Appellant's case, presented through the sole evidence of its Human Resource Manager, Mr. Caleb Otieno, was that the Respondent's employment contract with the Appellant was tied to the Appellant's own service contract with KRA, which lapsed at the end of October 2021 after a three-year term running from 1st November 2018 to 31st October 2021. It was the Appellant's case that the Respondent had been informed by his immediate supervisor of the lapse of the KRA contract and had been advised to report to the supervisor for re-assignment, but failed to do so and instead proceeded to take up employment with a competitor security firm which had taken over the KRA assignment. The Appellant characterised this conduct as desertion of duty and gross misconduct, disentitling the Respondent to notice pay or a finding of unfair termination. 5. It bears noting, as will be elaborated below, that the supervisor alleged to have communicated the advice to report for re-assignment was never called as a witness, and Mr. Otieno conceded in cross-examination that "the supervisor who told Claimant about termination is not at work." 6. The matter proceeded to hearing on 6th March 2024, with the Respondent testifying as the sole witness for the Claimant's case and Mr. Otieno testifying as the sole witness for the Appellant's case. Judgment was thereafter reserved and delivered on 19th September 2024. **C. THE JUDGMENT OF THE TRIAL COURT** 7. On the question of desertion and the fairness of the termination, the learned trial magistrate made the following findings, which this Court reproduces verbatim from page 71 of the Record of Appeal: ***"The respondent has failed to demonstrate any efforts undertaken to reach out to or report to the labor [sic] adduce that the claimant had deserted duty. This is despite the fact that they had knowledge that claimant had joined another employer. It would also be convincing to argue that the respondent would not have done anything since claimant had decided to join a competitor, however, efforts to have him back would have been demonstrated to court."*** ***"I find that the process preceding the claimant's leaving of employment was unfair and so, I hold."*** 8. On that basis, the trial court proceeded to grant the following reliefs: (a) one month's salary in lieu of notice, Kshs. 13,572.90; (b) unpaid annual leave for the period December 2018 to November 2021, Kshs. 30,555.00; (c) underpayment, computed at Kshs. 7,884.00 for the difference between the Respondent's salary and the applicable statutory minimum wage; (d) overtime, computed at Kshs. 111,888.00; (e) house allowance at 15% of salary for 36 months, Kshs. 69,120.00; (f) severance pay and unpaid public holidays, both declined; and (g) compensation for unfair termination under section 49(1) of the Employment Act, 2007, equivalent to three months' salary, Kshs. 38,400.00 — bringing the total decretal sum, together with costs and interest, to Kshs. 271,419.90. **D. THE GROUNDS OF APPEAL** 9. The Appellant's Memorandum of Appeal dated 11th October 2024 sets out six grounds, which for convenience the Appellant has consolidated in its Written Submissions into three broad issues, namely: (i) Whether the learned trial magistrate erred in law and in fact by failing to consider that the Respondent's employment contract was tied to the Appellant's contract with third parties, thereby arriving at an erroneous decision of unfair termination; (ii) Whether the learned trial magistrate misdirected herself in law and in fact by applying the wrong and/or failing to apply the correct law, tests, doctrines, principles and evidence relating to overtime, underpayment and house allowance; and (iii) Whether the learned trial magistrate erred in law and in fact by failing to consider the evidence tendered by the Appellant, thereby arriving at an erroneous award of damages, including the compensation of three months' salary awarded for unfair termination of service. 10. The Appellant urges this Court, sitting as a first appellate court, to re-evaluate, re-assess and re-analyse the record and to set aside the impugned awards, relying principally on the following authorities: Abok James Odera T/A A.J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR; Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR; and Amos Kipkurui Tuwei v Winguards Services Limited [2022] eKLR. **E. THE RESPONDENT'S OPPOSITION** 11. The Respondent opposes the appeal in its entirety. It is his case, first, that the learned trial magistrate correctly found that his termination was unfair within the meaning of sections 43, 45(2) and 47(5) of the Employment Act, 2007, since the burden of proving the reason for termination and of demonstrating that a fair procedure was followed rests squarely on the employer, and the Appellant discharged neither burden. It is submitted that the Appellant tendered no credible evidence of any formal communication of termination or reassignment, and no evidence of any effort to reach out to the Respondent before treating his absence as desertion, relying on Felistas Achecha Ikatwa v Charles Peter Otieno [2018] eKLR and James Ashiembi Namayi v Menengai Oil Refineries Ltd [2016] eKLR (citing with approval Stanley Omwoyo Onchweri v BOM Nakuru YMCA Secondary School [2015] eKLR). 12. Secondly, it is the Respondent's case that any contractual term purporting to tie the continuity of his employment to the Appellant's separate commercial contract with KRA cannot override the minimum statutory protections guaranteed under the Employment Act, 2007, relying on section 3(6) of the Act and the decisions in Juliet Ndaru v East African Growers Limited & another [2018] eKLR, Kamtix Cleaners Limited v Odhiambo [2025] eKLR, and Ready Consultancy Company Limited v Kamotso & another [2024] eKLR (which in turn applies Wrigley Company (East Africa) Limited v Attorney General & 2 others & another [2013] eKLR). 13. Thirdly, on quantum, the Respondent submits that each of the monetary awards made by the trial court — notice pay, leave, underpayment, overtime, house allowance and compensation — was properly founded on the pleadings and the unrebutted evidence on record, and prays that the Judgment be upheld in its entirety, with costs. **F. THE DUTY OF THIS COURT AS A FIRST APPELLATE COURT** 14. Both parties correctly identify the role of this Court on a first appeal. In Abok James Odera T/A A.J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the Court of Appeal, applying Kenya Ports Authority v Kuston (Kenya) Limited (2009) 2EA 212, held as follows: ***"On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence."*** 15. This Court, sitting as the first appellate court in relation to the Judgment of the subordinate court, is guided by the same principle. It has re-evaluated, re-assessed and re-analysed the entire record, including the pleadings, the exhibits, the oral evidence and the rival submissions, bearing in mind that it neither saw nor heard the witnesses testify and that appropriate deference is owed to the trial court on matters that turned on the credibility of witnesses. It is against that standard that the grounds of appeal are now determined. **G. ANALYSIS AND DETERMINATION** **Issue 1: Whether the termination of the Respondent's employment was fair** 16. This issue subsumes grounds (i) and part of ground (iii) of the appeal. Sections 43(1), 45(1) and 45(2) of the Employment Act, 2007 place upon an employer, in any dispute concerning termination of employment, the burden of proving both the reason for the termination and that the reason was valid, fair and constituted the true reason for the termination; failing which the termination is by operation of section 45 deemed unfair. Section 47(5) of the Act reinforces this position by placing the burden of justifying the grounds for termination on the employer once the fact of termination is not in dispute. Procedural fairness under section 41 of the Act — the right to be notified of, and heard on, the reasons an employer is considering for termination — is a distinct and additional requirement from the existence of a valid substantive reason; the two must both be established, and the absence of either renders a termination unfair. 17. This dual requirement of substantive and procedural fairness, both of which lie for proof upon the employer, was applied by the Court of Appeal in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, where the Court found that the employer had failed to prove any justifiable cause for the termination of the respondent's services, and held further that even where an employer has complied with the contractual notice or payment-in-lieu requirements, that compliance does not, on its own, cure a termination that is otherwise unsupported by a valid reason or a fair process. The same principle — that the duty lies squarely on the employer to prove both procedural and substantive fairness in a termination dispute — was applied in this jurisdiction in Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, a case concerning the very industry in which the present Appellant operates. I respectfully adopt and apply these authorities. 18. Applying that standard to the record before this Court, the Appellant's sole basis for terminating the Respondent's employment was an allegation of desertion: that the Respondent, upon learning of the lapse of the KRA contract, failed to report to his supervisor for reassignment and instead took up employment with a competitor. It is trite, and was correctly applied by the learned trial magistrate, that desertion or abandonment of employment is not established by the mere fact of an employee's absence or by an employer's suspicion that the employee has moved on; the employer must demonstrate that it made reasonable efforts to reach the employee, to ascertain the reasons for the absence, and, where appropriate, to issue an ultimatum calling upon the employee to resume duty, before it can be said that the employee deserted his post. This is the position taken in Felistas Achecha Ikatwa v Charles Peter Otieno [2018] eKLR and in James Ashiembi Namayi v Menengai Oil Refineries Ltd [2016] eKLR, applying Stanley Omwoyo Onchweri v BOM Nakuru YMCA Secondary School [2015] eKLR, both of which were relied upon by the trial court and are, in my respectful view, correctly stated. 19. The record bears out the trial court's finding that the Appellant did not discharge this burden. The Appellant's own witness conceded that the supervisor alleged to have informed the Respondent of the need to report for reassignment was not called to testify and was, by the time of trial, no longer with the company. No letter, message, or other documentary evidence of any communication to the Respondent regarding reassignment, the end of the KRA contract, or an impending termination was produced. No evidence was tendered of any attempt made by the Appellant, after the Respondent's last day of duty, to reach him, to ascertain his circumstances, or to call upon him to report — this notwithstanding the Appellant's own assertion that it was aware the Respondent had gone to work for a named competitor at the very premises he had previously guarded, a fact which, if anything, made it easier, not harder, for the Appellant to have reached him had it wished to do so. 20. I find, therefore, that the learned trial magistrate's analysis and conclusion — that the Appellant had asserted desertion as its reason for terminating the Respondent's employment, and had failed to do what the law requires of an employer relying on that ground, namely to demonstrate efforts to reach out to the employee and to establish desertion to the requisite standard — were correct in law and amply supported by the evidence on record. It follows, and I so hold, that her further finding, that the termination was in those circumstances unfair, was equally correct, both for want of a proven valid reason and for want of any procedural fairness whatsoever, no notice to show cause, hearing, or opportunity to respond having been extended to the Respondent as required by section 41 of the Act. 21. As a first appellate court looking afresh at the material placed before it, I am unable to find any basis to disturb this finding. It is not difficult, on this record, to see that the termination of the Respondent's employment was one effected without an established cause and without any adherence to procedural fairness. Grounds (i) and (iii) of the appeal, to the extent that they challenge the finding of unfair termination, accordingly fail. **Issue 2: The termination clause tying employment to the Appellant's contract with a third party** 22. It is convenient at this point to dispose, by way of a discrete but necessary observation, of an argument that runs through the Appellant's case both at trial and on appeal, namely that the Respondent's employment automatically terminated by operation of the clause in his contract of employment providing that "the service contract is tied to the 3rd parties and in the event that the employer is for any reason terminated by the 3rd party, I accept that my own employment contract automatically terminates." 23. I find it necessary to state that any assertion that the Respondent's employment hinged its very existence on the continued subsistence of the separate commercial contract between the Appellant and Kenya Revenue Authority is erroneous in law. Section 3(6) of the Employment Act, 2007 provides that the terms of the Act are minimum terms presumed into every contract of service and are not derogable by agreement between the parties. An employer cannot, by inserting a clause into a contract of employment, contract out of its statutory obligation to establish a valid reason for termination and to accord an employee a fair hearing before terminating his services, merely because the employer's own commercial arrangement with a client or principal has come to an end. This principle has been applied consistently, including in Juliet Ndaru v East African Growers Limited & another [2018] eKLR, in Kamtix Cleaners Limited v Odhiambo [2025] eKLR, and in Ready Consultancy Company Limited v Kamotso & another [2024] eKLR, the latter applying Wrigley Company (East Africa) Limited v Attorney General & 2 others & another [2013] eKLR for the proposition that an employer will not be permitted to use a commercial or outsourcing arrangement with a third party as a means of escaping its accrued and ongoing contractual and statutory obligations to its own employees. 24. The fate of the Appellant's contract with KRA may well explain why the Appellant no longer had work to offer the Respondent at that particular station; it cannot, however, by itself extinguish the employment relationship, nor can it substitute for the notice, valid reason and hearing which the law requires before that relationship may be lawfully terminated. To hold otherwise would permit an employer to define away, by private contractual language, protections that Parliament intended to be mandatory. This observation reinforces, rather than displaces, the finding already made on Issue 1 above. **Issue 3: Notice pay and unpaid leave** 25. Having found the termination unfair and unsupported by any notice, the award of one month's salary in lieu of notice under section 36 of the Employment Act, in the sum of Kshs. 13,572.90, was properly made and is not disturbed. 26. On unpaid leave, the Appellant produced only a single leave application form, for the year 2020, evidencing eleven days' leave taken by the Respondent. No evidence was tendered of leave granted, taken or compensated for the remainder of the Respondent's three years of service. Section 28 of the Employment Act confers annual leave as a statutory entitlement which an employer bears the burden of showing it has honoured; absent such evidence, the award of Kshs. 30,555.00 for unpaid annual leave for the period December 2018 to November 2021 was correctly made and this ground of appeal fails. **Issue 4: Underpayment** 27. Ground (ii) of the appeal also challenges the award for underpayment. Having considered the contract of employment tendered by the Respondent to the trial court — that is to say, the Appellant, then styled Respondent at first instance — as the document governing the parties' employment relationship, I am satisfied that the learned trial magistrate correctly treated it as such and correctly proceeded to test the wages actually paid to the Respondent against the statutorily prescribed minimum wage applicable to a day security guard under the relevant Regulation of Wages (General) (Amendment) Order. 28. A cause of action for underpayment of wages is properly founded on section 48 of the Labour Institutions Act, 2007, which governs the recovery of sums due to an employee where an employer has paid wages below the minimum prescribed by a wage order. Section 48(5) of that Act makes clear that the statutory mechanism for recovery of underpayments is in addition to, and not in derogation of, any other right the employee has to recover such sums, and that an employer who pays below the applicable Wage Order remains liable for the shortfall notwithstanding any contrary contractual stipulation. It is not open to an employer to plead that it paid the employee "according to the contract"; once a minimum wage is prescribed by a Wage Order, it is by operation of law read into and becomes an implied term of every contract of service falling within its scope, and any lesser contractual term is to that extent invalid and unenforceable. 29. On the evidence, the Respondent's actual wage fell below the minimum monthly wage prescribed for a day security guard/day watchman in the relevant wage-order schedule, and the Appellant neither pleaded nor proved before the trial court that the Wage Order did not apply to it, nor that it had in fact paid the Respondent at or above the prescribed minimum. In those circumstances, the trial court rightly awarded the relief for underpayment in the sum of Kshs. 7,884.00, and this ground of the appeal fails. **Issue 5: Overtime** 30. The position is markedly different in respect of the award for overtime. As pleaded and as testified to, the Respondent's claim was for four hours of overtime worked daily, every day, for the entire three-year duration of his employment. The learned trial magistrate, in her own judgment, expressly rejected this claim as exaggerated and impractical, observing that it failed to account for the Respondent's entitlement to leave and rest days and that a claim of having worked without interruption throughout the employment period was "so generalized" as to be unsustainable. 31. Having made that finding — which this Court respectfully endorses, since it was amply supported by the evidence, including the Appellant's uncontroverted testimony that overtime was payable only upon an employee's claim and confirmation, of which no sample or record was produced by the Respondent — the correct course was to dismiss the unproved and, on the trial court's own finding, unsustainable claim as pleaded. Instead, the trial court proceeded to fashion its own alternative formula, allowing overtime for six days a week over eleven months (deducting one month for leave), and arrived at a computation of 1,776 hours worked, multiplied by an hourly rate, producing an award of Kshs. 111,888.00. 32. This approach cannot be sustained. It is well settled that parties are bound by their pleadings, and that evidence, or indeed a court's own findings, which depart from what was pleaded cannot found a judgment in a party's favour. In Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, the High Court reiterated this position, holding as follows: ***"It is now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings."*** 33. Once the trial court found, correctly, that the pleaded case of daily four-hour overtime worked without interruption for three years was exaggerated, impractical and unsupported by credible evidence, there remained no pleaded, proved or otherwise sound evidential basis upon which to substitute a different quantum of overtime of the court's own devising. The resulting computation — itself compounded by the use of inconsistent wage figures across the record (variously Kshs. 12,680, Kshs. 12,800 and Kshs. 13,500 for what ought to have been a single ascertainable monthly wage) — bears the hallmarks of approximation and speculation rather than of a finding grounded in pleaded and proved fact. It was not open to the trial court to remedy a defective and exaggerated claim by fashioning, on her own initiative, a different claim that was neither pleaded nor proved. The award of Kshs. 111,888.00 for overtime cannot stand and is hereby set aside. **Issue 6: House allowance** 34. The award of Kshs. 69,120.00 for house allowance, computed at 15% of a monthly wage of Kshs. 12,800.00 over 36 months, suffers from a similar and, in my view, more fundamental infirmity. The Respondent did advance, in his witness statement and in his oral evidence, a factual basis for a claim to house allowance, namely his assertion that none was paid to him. To that extent it cannot be said that the claim was baseless on its face, and the learned trial magistrate was entitled to consider it. What was wrong, however, was the manner in which the claim was resolved: the trial court granted the relief without according any reasons whatsoever for rejecting the Appellant's documentary evidence and submissions on the point, and this omission was, in itself, an error justifying interference by this Court. 35. The Appellant tendered, and the Respondent did not dispute signing, a written contract of employment which, at its remuneration clause, provided in clear terms that "the company shall pay the employee a consolidated gross of Kshs. 13,500 subject to such deductions as the company may by law be required or permitted to make. These include but not limited to deductions such as PAYE, NSSF and NHIF." The Respondent confirmed in cross-examination that he signed the contract and did not dispute its terms; he merely stated that he "knew nothing about contracts," which goes to his understanding of the document, not to its validity or its terms as between the parties. 36. Section 31(2)(a) of the Employment Act, 2007 exempts an employer from the obligation to provide reasonable housing or a housing allowance only where the contract of service contains a provision which consolidates, as part of the employee's basic wage or salary, an element intended to be used by the employee as rent or to otherwise enable him to provide himself with housing accommodation. That is precisely the position on this record: the remuneration clause does not describe a basic salary to which allowances are added; it describes, in terms, a single consolidated gross figure from which only statutory deductions are made. This very question, arising out of an identically worded remuneration clause used by this Appellant, was considered in Amos Kipkurui Tuwei v Winguards Services Limited [2022] eKLR, where the Court held as follows: ***"...regulation 5 of the regulation of wages protective services order clearly shows that house allowance is 15% of the basic salary, I do not agree that the salary in the contract is a basic salary. The Employment contract which is the only contract signed by the claimant is clear that the salary is a consolidated salary which includes house allowance. I thus find that the claimant was paid a consolidated salary which include house allowance and other allowances..."*** 37. I respectfully adopt that reasoning. The 15% formula found in the applicable protective-services wage order applies to a basic wage; it has no application where, as here, the parties have by written contract agreed upon a single consolidated wage inclusive of a housing element. To apply the 15% formula on top of a wage that has already been treated, for purposes of the underpayment claim considered above, as being tested against a statutory minimum which is itself inclusive of housing, would in substance amount to compensating the Respondent twice over for the same component of remuneration. The learned trial magistrate did not engage with the remuneration clause, did not address the Amos Kipkurui Tuwei decision or the terms of section 31(2)(a), and gave no reasons for preferring the Respondent's bare assertion over the express terms of a contract both parties had signed and neither disputed. That was an error. The award of Kshs. 69,120.00 for house allowance is accordingly set aside. **Issue 7: Compensation for unfair termination under section 49(1)(c) of the Employment Act** 38. The final limb of the appeal challenges the award of compensation equivalent to three months' gross salary, Kshs. 38,400.00, made under section 49(1)(c) of the Employment Act. Having upheld the finding that the termination was unfair, both for want of a valid reason and for want of procedural fairness, the Respondent was plainly entitled to an award of compensation under this provision, subject to the statutory cap of twelve months' wages and to the discretionary factors set out in section 49(4) of the Act, including the circumstances of the termination, the length of service, and the extent to which the employee has mitigated his loss by securing alternative employment. 39. The record shows that the learned trial magistrate had regard to precisely these considerations, noting expressly that the Respondent had already secured alternative employment and that he had served the Appellant for a period of approximately three years, and on that basis moderated the award to three months' gross salary, well below the statutory maximum of twelve months. This was a measured and properly reasoned exercise of the discretion conferred by section 49, and the Appellant has not demonstrated that the trial court applied a wrong principle, took into account an irrelevant consideration, or arrived at a figure that is manifestly excessive or unreasonable in the circumstances. It is well established that an appellate court will not lightly interfere with the exercise of a trial court's discretion on quantum of compensation absent such a demonstrated error. I find no reason to disturb the award made under section 49(1)(c) of the Employment Act, and this ground of appeal fails. **H. DISPOSITION** 40. For the foregoing reasons, I find that the appeal succeeds only in part. The findings that the Respondent's employment was unfairly terminated, and the awards of notice pay, unpaid leave, underpayment and compensation for unfair termination, are upheld. The awards for overtime and for house allowance are set aside. 41. The Judgment of the trial court delivered on 19th September 2024 is accordingly varied as follows: (a) The award of Kshs. 111,888.00 for overtime is set aside in its entirety. (b) The award of Kshs. 69,120.00 for house allowance is set aside in its entirety. (c) The awards of Kshs. 13,572.90 (notice pay), Kshs. 30,555.00 (unpaid leave), Kshs. 7,884.00 (underpayment) and Kshs. 38,400.00 (compensation for unfair termination under section 49(1)(c) of the Employment Act) are upheld and shall stand. (d) The revised decretal sum payable by the Appellant to the Respondent is accordingly Kshs. 90,411.90, together with interest thereon at court rates from the date of the trial court's Judgment until payment in full. (e) The order of the trial court as to costs of the suit is not disturbed. (f) Given the divided outcome of this appeal, each party shall bear its own costs of this appeal. 42. It is so ordered. Dated, signed and delivered at Mombasa this 30th day of July 2026 **OCHARO KEBIRA** **JUDGE**